Too many ‘state secrets privilege’ cases

At the beginning of this year, just as President Obama was taking office, a lawsuit was heading to court in California in which the Bush administration had invoked what’s known as the “state secrets privilege.” The administration wanted the case, which had been brought by five alleged victims of torture, dismissed on the grounds that if it went forward, it would require the disclosure of sensitive classified information.

The Bush administration loved to invoke the state secrets privilege, and did so more than any previous administration. As a result, people who said they had been subjected to torture, kidnapping or other mistreatment at the hands of the U.S. government often had their cases summarily dismissed and found themselves without any opportunity to seek redress through the courts. Now the question was: Would Obama, who on the campaign trail had criticized the overuse of the state secrets privilege, stick with the Bush position, or would he allow the case of the five alleged victims to go forward?

Sadly, he made the wrong decision. Just two weeks into the new term, in a move that left civil libertarians deeply discouraged, the Obama Justice Department reasserted the state secrets privilege in Mohamed vs. Jeppesen DataPlan Inc., saying nothing had changed and urging the court not to “play with fire” by allowing the case to proceed.

We were gravely disappointed by Obama’s decision. But this week, the U.S. 9th Circuit Court of Appeals has a chance to put itself on the right side of history by rejecting the administration’s arguments and ordering that the Jeppesen case continue.

This is particularly important because, over the last 11 months, the Obama administration has used a variety of arguments to get potentially embarrassing cases dismissed on procedural grounds.

For example, in Rasul vs. Myers, brought by former Guantanamo detainees, the administration argued that even if the allegations of torture were true, government officials should be protected by qualified immunity. In a case involving John Yoo, an architect of the Bush administration’s torture policies, the Obama Justice Department argued that moving forward would interfere with matters of war and national security, which are beyond judicial scrutiny. Reasonable people can quibble over some of the administration’s arguments, but the bottom line is this: Nearly eight years after the United States chose to sidestep the rule of law in favor of rendition and torture, many victims of those abuses have been denied the chance to have their cases heard in court.

If the Obama administration won’t act responsibly in the Jeppesen case, the courts must step forward. Traditionally, judges have been deferential to government lawyers who warn that national security may be compromised; understandably, judges are loath to contradict findings by CIA directors and military leaders that suggest the country could be put at risk. But earlier this year, in an act of bravery, a panel of three 9th Circuit judges did overrule the administration and ordered that the Jeppesen case go forward. On Tuesday, the full 9th Circuit will review that decision.

We urge the judges to let the case proceed so that these alleged victims of U.S. mistreatment can make their case in court.